“Now that we're not having to contemplate anybody retiring prior to the age of 60, given that preservation age has hit 60, we've got a vastly different approach to what people need to satisfy that definition of retirement,” he said.

“Prior to 1 July, you had to declare a future intent [to stop employment], so if you were under age 60, you had to declare a future intention of no longer intending to be gainfully employed, whereas now you can still make that declaration, but more importantly you've got the capacity to say that an arrangement under which you are gainfully employed has come to an end, and that's enough to satisfy the retirement definition.”

Aaron Dunn, CEO of Smarter SMSF, said looking only at a change in the condition of an employment relationship, and even where there are multiple employment arrangements, means you would only need to cease one of those arrangements to make those benefits accessible for individuals.

“When we look at conditions of release, we know naturally the importance of the different conditions in the context of whether we're paying a retirement phase income stream or transition to retirement income stream, and the impact that has,” he said.

“But there are a few other income streams that can be paid, in particular in the context of SMSFs, that we need to be aware of and the conditions of release that happen around those.”

Miller agreed and said advisers need to have a full appreciation for not just the conditions of release, but the cashing restrictions that are attached to them.

“Everyone's ultimate goal is to attain age 65 and then have full access to their super benefits. Of course, if you are pre-65 then you're looking for that retirement definition to be able to get full access and then you've got your other conditions that will ultimately allow you to access your benefits fully,” he said.

“For somebody else to access your benefits fully, there are conditions of release of permanent capacity and death which can be paid out as a disability superannuation income stream or a death benefit superannuation income stream, so there are those opportunities there.”

However, Miller added there are other conditions of release regarding things such as temporary incapacity, where under the guise of a vehicle like an income protection insurance policy, the fund can own that policy and can pay an income stream to the member of the fund.

“That is a very different income stream to what we might see in retirement phase and in fact, I often reference it more as an insurance funnel where the money is funnelled through the super fund,” he said.

“Rather than the insurer paying the member directly, they're paying the super fund, and then the super fund is passing that income on, albeit with a potential withholding tax liability attached to it.”

Dunn said another aspect to consider in this space is the ATO’s literature around the related party or the closely held nature of small business in particular, and the way in which individuals might “conjure up” a condition of release being met.

“There is a good example that the ATO has on its website of the Crackle family trust which deals with the restructuring of someone's affairs where ultimately there is no change in the exertion that the individual does, at least to the extent that they're not working less than 10 hours in a week,” he said.

“Therefore the result that they get from that direct or indirect performance is effectively one an the same but rather, maybe it being wages, salary and wages, it comes back to them in the form of a distribution and ultimately increased.”

He added the ATO example highlights the way that the regulator will examine how that arrangement has tried to create a condition of release.

Miller said the example is the reverse of what used to be seen in contribution rules, where people used to contract that they were working to be able to make contributions.

“In this instance, they're conjuring up that they're not working to be able to access their benefits and of course, the reality of that is that there are alternatives,” he said.

“You don't necessarily know that their preservation age is 60. You don't need to have full access to super. You've got your natural access via a transition to retirement income stream. Now, of course, that's not a pension in the retirement phase, so the fund is still liable for tax, but it's a better alternative than having illegal early release of super as the outcome for withdrawing benefits where you think you've met a condition and you haven't.”